Court strikes down California sentencing law, says that with changes Tennessee law is constitutional

The U.S. Supreme Court struck down California's sentencing law today -- reaffirming limits on judges' discretion -- and also commented favorably on changes the Tennessee legislature made to its then-identical sentencing laws in 2005. According to Nashville lawyer David Raybin, who wrote about those changes in a July 2005 Tennessee Bar Journal article, it was a "surprise" that the court commented on Tennessee's efforts. "Other States have chosen to permit judges genuinely 'to exercise broad discretion ... within a statutory range,' which, 'everyone agrees,' encounters no Sixth Amendment shoal," the court said in commenting on Tennessee law. The Boston Herald has this story. Read the full opinion at

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. KELLY MICHAEL PICKETT and STATE OF TENNESSEE v. GREGORY T. HARWOOD

We granted the appeal in each of these cases to determine the constitutionality of Tennessee Code
Annotated section 39-17-1003 (2003), which prohibits the possession of child pornography.
Initially, the statute is neither unconstitutionally vague nor overbroad. Secondly, we hold that
because the charges against Pickett were multiplicitous, only one conviction is permissible under the
circumstances of that case. In consequence, the judgment of the Court of Criminal Appeals in each
case is affirmed.

The issue we review in this case is whether the Defendants exercised peremptory challenges during jury selection based on race and/or gender in a discriminatory manner contrary to the United States Supreme Court’s holding in Batson v. Kentucky. The Defendants used six of their seven peremptory challenges to strike women from the jury panel, including the only African-Americans who were seated in the jury box. In response to the Plaintiff’s race-based Batson challenge, the Defendants responded that one of the African-American women was dismissed because she had difficulty remembering the verdict in a previous civil jury case in which she had served as a juror and because she had a family history of cancer. As to the Plaintiff’s gender-based Batson objection, the Defendants responded that the women were excused based on “experience and body mechanics.” The trial court overruled the Plaintiff’s objections and the trial proceeded. Following a defense verdict, the Plaintiff appealed, and the Court of Appeals affirmed the judgment. After careful review of the record and applicable authorities, we hold that the Defendants’ stated reasons for exercising peremptory challenges to strike the African-Americans and women from the jury panel were insufficient to satisfy the requirements of Batson v. Kentucky. Because the trial court erred in overruling the Plaintiff’s Batson objections, we reverse and remand this case to the trial court for a new trial.

This is a child custody dispute. The biological parents of the child involved in this action met in
Georgia, where the child was born in December 2002. The parties lived together with the child,
but never married. Initially, the parties moved several times with the child, following job
opportunities for the father. When the child was about nine months old, the parties moved to
Jackson, Tennessee. Not long after that, the mother and the child returned to Georgia to live
with the mother’s parents in Georgia, in order for the mother to seek professional help for
depression. About nine months later, after an altercation between the mother and the child’s
maternal grandmother, the mother told the father that she could not care for the child and asked
him to assume custody. Accordingly, the father took the child to live with him in Jackson.
About two months later, the father filed the instant petition for legitimation of the child and to
seek custody. The mother opposed the father’s petition and filed a counter-petition for custody.
After a hearing, the trial court determined that the father was comparatively more fit than the
mother and designated him as the primary residential parent. The mother now appeals. We
affirm, finding that the evidence does not preponderate against the trial court’s determination.

Two former members of the Congregation of Jehovah’s Witnesses filed suit against the church and
its leaders for damages associated with their expulsion from the organization. The defendants filed
a Tenn. R. Civ. P. 12.02(1) motion to dismiss their complaint on the ground that civil courts do not
exercise jurisdiction over internal church matters. The trial court denied the motion. On
interlocutory appeal, we hold that the trial court should have dismissed all of the plaintiffs’ claims
because they are barred by the First Amendment’s protection of purely religious matters from
interference by secular courts.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney
General; and Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Reginald E. Bost, appeals the decision of the Knox County Criminal Court
revoking his alternative sentence. In July 2004, the Defendant pled guilty to possession with
intent to sell .5 grams or more of cocaine and received an eight-year sentence. This sentence was
suspended, and he was placed in the Community Alternative to Prison Program. On April 13,
2005, a warrant was issued, wherein it was alleged that the Defendant violated the conditions of
the program. The warrant was later amended to include additional violations. After a hearing,
the trial court concluded that the Defendant violated the conditions of his sentence and ordered
that his original eight-year sentence to the Department of Correction be reinstated. On appeal,
the Defendant argues that the evidence does not support full revocation of his alternative
sentence. After a review of the record, the judgment of the trial court is affirmed.

Robert E. Cooper, Jr., Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Mike Bottoms, District Attorney General; for the Appellee, State of Tennessee

Judge: HAYES

The Appellant, Christopher Christie, presents for review a certified question of law from the Maury
County Circuit Court. See Tenn. R. Crim. P. 37(b)(2)(i). Christie pled guilty to simple possession
of marijuana and received an eleven-month and twenty-nine day sentence, which was suspended.
On appeal, Christie asserts that his initial misdemeanor arrest was void because it violated the “cite
and release” provisions of Tennessee Code Annotated 40-7-118. Accordingly, he argues that the
dispositive question is whether his prosecution is barred by the statute of limitations because his
indictment, which followed numerous continuances in the general sessions court, was returned
outside the twelve-month limitations period for misdemeanor offenses. The State argues that
because Christie failed to properly reserve his certified question, this court is without jurisdiction
to hear the appeal. Following review, we agree that the certified question was neither properly
certified nor reserved. Accordingly, this appeal is dismissed.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney
General; and Joe Crumley, District Attorney General, for the appellee, State of Tennessee

Judge: WELLES

In October of 1987, the Petitioner, Edward Duelley, was convicted of armed robbery and assault
with the intent to commit robbery. The Petitioner received an effective sentence of thirty-eight
years in the Department of Correction. On January 6, 2006, the Petitioner filed a pro se petition
for writ of habeas corpus, which the trial court summarily dismissed. On appeal, the Petitioner
contends that the trial court erred in dismissing his petition. We affirm the trial court’s summary
dismissal of the petition.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney
General, for the appellee, State of Tennessee

Judge: WELLES

The Defendant, Gregory Dunnorm, was indicted by an Anderson County grand jury for one
count of third offense of driving with a suspended license and one count of failure to appear.
Following a jury trial, the Defendant was convicted of second offense of driving with a
suspended license, a Class A misdemeanor, and failure to appear, a Class E felony. The
Defendant filed a timely motion for a new trial, which the trial court denied. The Defendant now
appeals, arguing that the evidence was insufficient to support his conviction for failure to appear
beyond a reasonable doubt.1 We affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General,
for the appellee, State of Tennessee

Judge: THOMAS

Petitioner, Milburn L. Edwards, was convicted by a Davidson County jury of twenty-one counts of
rape, two counts of first degree burglary, two counts of aggravated burglary, one count of second
degree burglary, one count of aggravated rape, one count of assault with intent to commit rape and
one count of robbery. He received an effective sentence of life plus 415 years, which was later
modified to life plus 195 years on appeal. State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App.
1993). A petition for post-conviction relief was denied by the trial court and the denial was affirmed
on appeal. Milburn L. Edwards v. State, No. M2002-02124-CCA-R3-PC, 2003 WL 23014683
(Tenn. Crim. App. at Nashville, Dec. 15, 2003). On March 13, 2006, the petitioner filed a pro se
petition for writ of habeas corpus challenging his convictions for the failure of the district attorney
general to endorse the indictments. The trial court dismissed his petition without the appointment
of counsel or an evidentiary hearing. Following our review, we affirm the judgment of the trial
court.

David Brady, District Public Defender; John B. Nisbet, III, Assistant District Public Defender, for
the appellant, Scott Douglas Griffin

Robert E. Cooper, Jr., Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
William Gibson, District Attorney General; Beth Willis and William Locke, Assistant District
Attorneys General, for the appellee, State of Tennessee

Judge: THOMAS

Appellant, Scott Douglas Griffin, pled guilty in the White County Criminal Court to attempt to
manufacture a schedule II controlled substance, a Class D felony. The trial court sentenced him to
three years as a Range I standard offender, suspended to be served on supervised probation. On
March 5, 2003, the trial court found the appellant to be in violation of his probation. The trial court
required the appellant to serve thirty-eight days in jail and extended his probationary period to two
years from the original expiration date. Subsequently, the appellant was again found to be in
violation of his probation whereupon the trial court revoked the appellant’s probation and ordered
him to serve his sentence in confinement. The appellant appealed this action, alleging that the trial
court abused its discretion by revoking his probation. Following our review, we affirm the judgment
of the trial court but remand the case for a correction of the judgment to reflect credit for any time
served as a result of the initial revocation and the appellant’s arrest for the present revocation.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Greeley Wells, District Attorney General; and B. Todd Martin, Assistant District
Attorney General, for the appellee, State of Tennessee

A Williamson County Criminal Court jury convicted the defendant, LaCorey Damont McKissack,
of selling 0.5 grams or more of cocaine, a Class B felony, and fixed his fine at $20,000. The trial
court approved the fine and sentenced the defendant to 11 years in the Department of Correction as
a Range I, standard offender. On appeal, the defendant contends that the fine and sentence are
excessive. We disagree and affirm the judgment of the trial court.

Robert S. Peters, Winchester, Tennessee, for the appellant, Clementine Myers

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William Edward Gibson, District Attorney General; Dale Potter and Larry Bryant, Assistant District
Attorneys General, for the appellee, State of Tennessee

Judge: WILLIAMS

Both the State of Tennessee and the defendant, Clementine Myers, appeal decisions made by the trial
court. The defendant contends that the trial court erred in sentencing the defendant as it relates to
the length and manner of service. The State of Tennessee contends the trial court erred in barring
the defendant’s retrial on the charge of conspiracy to commit first degree murder. After careful
review, we affirm the sentence imposed and reverse the trial court’s order barring the retrial of this
defendant on the charge of conspiracy to commit first degree murder.

A Wayne County Jury convicted the defendant of four hunting related offenses. The trial court
sentenced the defendant to an effective sentence of seventy days, to serve forty-two days in
incarceration with the remainder suspended. The defendant argues on appeal that he should have
been granted probation with regard to his entire sentence. After a review of the record, we affirm
the judgments of the trial court.

The petitioner, Torrence Ladovia Reed, pled guilty in the Circuit Court for Giles County to four
counts of sale of cocaine (Class B felony), two counts of delivery of cocaine (Class B felony), one
count of conspiracy to deliver cocaine (Class C felony), six counts of conspiracy to sell cocaine
(Class C felony), and one count of sale of marijuana (Class E felony). He received a total effective
sentence of twenty-eight years. He filed a petition for post-conviction relief and alleged that his
pleas were involuntary because his counsel was ineffective in failing to properly explain to him the
difference between consecutive and concurrent sentences. After careful review, we find no grounds
for which to grant relief, and we affirm the judgment of the post-conviction court.

Robert E. Cooper, Jr., Attorney General & Reporter; and Brent C. Cherry, Assistant Attorney
General, for the Appellee, State of Tennessee

Judge: WITT

The Wayne County Circuit Court dismissed Derrick Sawyers’ petition for a writ of habeas corpus
because the petitioner was not restrained of his liberty by reason of the challenged Davidson County
convictions. The petitioner’s plea agreement called for a combination of consecutive and concurrent
sentencing for three unrelated offenses, the last two of which were committed while the petitioner
was on bond. Upon our review of the record and the applicable law, we vacate the circuit court’s
order and remand.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; and H. Greeley Wells, Jr., District Attorney General, for the appellant, State of
Tennessee

Judge: WELLES

The Defendant, Jermeil Ralph Tarter, was indicted by a Sullivan County grand jury for evading
arrest, a Class A misdemeanor. Following a jury trial, the Defendant was convicted of the
indicted offense. In this direct appeal, the Defendant alleges that (1) the evidence was
insufficient to support his conviction beyond a reasonable doubt and (2) the trial court erred in
requiring the Defendant to serve this sentence consecutively to his prior sentences. We affirm
the judgment of the trial court.

Petitioner, James D. West, entered guilty pleas in the Madison County Criminal Court to driving
after having been declared a habitual motor vehicle offender, two counts of aggravated assault and
two counts of reckless endangerment. He received an effective sentence of four years. On October
4, 2005, the petitioner filed a pro se petition for writ of habeas corpus in the Davidson County
Criminal Court alleging that his sentence had expired. On January 5, 2006, the trial court dismissed
the petition without an evidentiary hearing or the appointment of counsel. Following our review, we
affirm the judgment of the trial court.

The Mexican parents of an undocumented immigrant construction worker who was killed while working in Nashville more than four years ago, are entitled to workers' compensation death benefits, the Tennessee Supreme Court ruled Thursday.
The decision could have broad implications for Tennessee firms that hire undocumented workers. The unanimous opinion, written by Justice Cornelia Clark, cites Tennessee law that gives foreign dependents access to the Tennessee justice system for death benefits under workers' compensation. The decision did not sit well with those advocating a tougher line on immigration. "I think social benefits like that are in place for regular workers," said Theresa Harmon, co-founder of Tennesseans for Responsible Immigration Policies."This is simply going to open a flood gate."

William E. "Bill" Gibson, the suspended district attorney general for the 13th Judicial District, will appear in a Nashville courtroom Feb. 21 and 22 to request a temporary suspension of his law license be lifted, the Sparta Expostor reports.
Gibson was handed the punishment by Tennessee Board of Professional of Responsibility in September after convicted murderer Chris Adams shared letters with his attorney that Gibson had written to Adams while Adams was in prison.

More than $18.3 million was spent from the state's indigent defense fund last year. The year before the figure was much lower -- about $17.4 million, according to the annual report released by the Administrative Office of Courts. The report says the budget for courts and related services was 0.38 percent of the total state budget. The report details judicial salary increases, new funds for indigent civil representation (signed into law in May 2006), usage of the court's web site and federal grants for a custody and visitation study.

The Davidson County Probate Court has set Aug. 13 to hear the case of the state of Tennessee and the Maddox Foundation v. the Maddox Foundation Corp. and Robin G. Costa. Despite a number of additional lawsuits filed in numerous other jurisdictions, along with many contradictory decisions handed down by some of those different courts, a trial in the court of original jurisdiction could help settle a family and legal dispute that has lingered since the death of the Maddox Foundation's founders, Dan and Margaret Maddox, almost a decade ago. Or it could not. Legal experts say the case is so complex that predicting how any decision out of any court could affect any of the impending proceedings is almost impossible.

In its first regular meeting since the historic Tennessee Supreme Court ruling upholding term limits, the Knox County Commission voted 17-2 against holding a non-binding referendum that would let citizens tell commissioners who they want to replace term-limited officeholders.
Commissioners also voted 14-5 to reject a proposal requiring that term-limited officeholders be replaced via a special election.

Knoxville defense lawyer Gregory P. Isaacs appeared Sunday on Fox News to discuss Tennessee's so-called "crack tax" on illegal drugs. The statute, which allows state tax officials to seize money and property before the accused has been convicted of any crime, was ruled unconstitutional last year by a Davidson County judge.

An editorial in the Mountain Press urges the Sevier County Commission to consider options, including the possibility of a judicial center, for upgrading and adding more space to the current courthouse.

Gov. Phil Bredesen was sworn in Saturday for his second term, saying "I want these next four years to be the time when we set Tennessee on the path of truly putting our children and their education at the head of the list." After the ceremony, Bredesen swore in the 21 members of his cabinet. Read about it, including the names of the cabinet members and the full text of the 12-minute speech

State Sen. Rosalind Kurita, D-Clarksville, said she is "paying the price" among some Democrats for having crossed over to help Republican Sen. Ron Ramsey become Senate speaker, but the lawmaker believes she "did the right thing."

Famous for his fancy cars and fine living, former state senator John Ford told a Nashville judge Friday he can't afford a lawyer and may need a public defender, the Commercial Appeal reports. Ford was to be arraigned Friday, but his announcement delayed the hearing until next Thursday. U.S. Magistrate Juliet Griffin said if Ford is unable to hire an attorney by then, he will be represented by a public defender or a private attorney appointed by the court.